State v. Theriault
| Decision Date | 04 December 2008 |
| Docket Number | No. 2007-601.,2007-601. |
| Citation | 960 A.2d 687 |
| Parties | The STATE of New Hampshire v. Robert THERIAULT. |
| Court | New Hampshire Supreme Court |
Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief, and Paul Borchardt, assistant appellate defender, orally, for the defendant.
The defendant, Robert Theriault, was found guilty of prostitution, see RSA 645:2, I(f) (2007), following a bench trial in the Superior Court (Conboy, J.). The defendant appeals the trial court's denial of his motion to dismiss, alleging the prostitution statute is constitutionally overbroad as applied to him. We reverse.
The record reveals the following. The defendant was employed as a court security officer in Franklin District Court. On December 5, 2005, he asked a young woman, C.H., and her boyfriend, J.S., who were at the court paying fines, if they needed employment. After informing them that he could not discuss the job at the courthouse, he met them in a parking lot behind a bank. The defendant asked the couple if they wanted to make "f ... flicks." The defendant specified the details: he would pay them fifty dollars per hour, he would rent a hotel room, and they would use temperature blankets and different condoms while the defendant videotaped them having intercourse.
C.H. and J.S. reported the incident to J.S.' mother, who in turn reported it to a court official. The defendant was charged with multiple counts of prostitution arising out of these allegations as well as another incident involving a different couple, but which did not involve a request to videotape them.
Prior to trial, the defendant moved to dismiss both the charges in this case and those arising from the other incident, claiming that the prostitution statute is constitutionally overbroad. He argued that "RSA 645:2, I(f) is written broadly, and could literally be applied to sexual contact of a nature that theatres/movies are constitutionally entitled to present." The trial court denied the motion, relying upon the definition of "sexual contact," see RSA 632-A:1, IV (2007) (including only conduct that is "for the purpose of sexual arousal or gratification"), to conclude that RSA 645:2, I(f) is not substantially overbroad. The trial court, however, further observed that "sexual contact for a purpose other than sexual gratification, like producing a movie or a theatrical production, would not be subject to sanction under the statute."
The defendant was convicted, in two separate trials, of the charges arising out of the facts currently before us as well as the other charges. As to the other charges, which did not involve videotaping, the defendant appealed, arguing the statute is facially unconstitutional. We affirmed the trial court's decision. State v. Theriault, 157 N.H. 215, 949 A.2d 678 (2008). In this appeal, the defendant argues that the statute is unconstitutional as applied to the facts of this case.
The defendant argues the prostitution statute is overbroad as applied to the constitutionally protected activity of making a sexually explicit videotape. He raises his argument under the free speech protections of both the New Hampshire and Federal Constitutions. See N.H CONST. pt. I, art. 22; U.S. CONST. amends. I, XIV. Because the issue before us is one of constitutional law, we review it de novo. Theriault, 157 N.H. at 217, 949 A.2d 678. The party challenging a statute's constitutionality bears the burden of proof. State v. Pierce, 152 N.H. 790, 791, 887 A.2d 132 (2005). We first address the defendant's argument under the State Constitution, citing federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983).
Our overbreadth law is well-settled: "The purpose of the overbreadth doctrine is to protect those persons who, although their speech or conduct is constitutionally protected, `may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.'" State v. Brobst, 151 N.H. 420, 422, 857 A.2d 1253 (2004) (quoting New York v. Ferber, 458 U.S. 747, 768, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)). "While the Constitution `gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere,' the application of the overbreadth doctrine is `strong medicine' to be employed `only as a last resort.'" Id. (quoting Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)).
As we reiterated in Theriault:
The substantial overbreadth doctrine applies to constitutional challenges of statutes that prohibit conduct, as well as challenges to those statutes prohibiting pure speech and conduct plus speech.
If a statute is found to be substantially overbroad, the statute must be invalidated unless the court can supply a limiting construction or partial invalidation that narrows the scope of the statute to constitutionally acceptable applications. If, on the other hand, a statute is not substantially overbroad, then whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.
Theriault, 157 N.H. at 217-18, 949 A.2d 678 (quotations omitted).
Here we must decide whether RSA 645:2, I(f) is unconstitutional as applied to the particular facts of this case. RSA 645:2, I, provides: "A person is guilty of a misdemeanor if the person: ... (f) Pays, agrees to pay, or offers to pay another person to engage in sexual contact as defined in RSA 632-A:1, IV or sexual penetration as defined in RSA 632-A:1, V, with the payor or with another person." RSA 632-A:1, IV defines "sexual contact" as RSA 632-A:1, V includes a list of sexual acts that constitute sexual penetration but does not include the provision "for the purpose of sexual arousal or gratification."
In Theriault, the defendant argued "that RSA 645:2, I(f) is substantially overbroad because it could be applied to criminalize constitutionally permissible activities such as the production of a non-obscene but sexually explicit movie." Theriault, 157 N.H. at 218, 949 A.2d 678. We disagreed that the statute was facially overbroad and held that "any applications of the statute that infringe upon protected conduct, to the extent that such applications exist, may be remedied on a case-by-case basis." Id. at 219, 949 A.2d 678. In doing so, we emphasized that the definition of "sexual contact" includes "for the purpose of sexual arousal or gratification." Id. at 218, 949 A.2d 678.
In this case, however, the State did not charge the defendant with offering to pay another to engage in "sexual contact," and there was no evidence or allegation that the defendant acted with "the purpose of sexual arousal or gratification." In fact, at trial, the only witness was C.H. She testified that the defendant asked her and her boyfriend if they needed employment, and if they wanted to make videos. She testified that "[h]e said that he would rent a hotel room and he would be the only one recording, so we didn't feel uncomfortable." C.H. said that the defendant offered to pay them fifty dollars per hour, and she specified: "He's just going to pay us to make the video." The trial court found that the State
The facts boil down to the defendant offering to remunerate the couple to have sexual intercourse while being videotaped. There was no evidence or allegation that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video. The State did not charge the defendant under the "sexual contact" portion of the statute and therefore there was no finding by the trial court that the defendant acted for the purpose of sexual arousal or gratification. Thus, if the statute constitutionally prohibits the defendant's conduct, a request to pay two individuals to make a sexually explicit video would be unprotected under the free speech guarantees of the State Constitution.
"[E]xpression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). "It cannot be doubted that motion pictures are a significant medium for the communication of ideas." Id. at 501, 72 S.Ct. 777. "The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform." Id. There is, however, a "legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles." Miller v. California, 413 U.S. 15, 18-19, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (establishing obscenity standard). "As a general rule, pornography can be banned only if obscene," Ashcroft, 535 U.S. at 240, 122 S.Ct. 1389, and thus some pornography is protected speech.
We must decide to what extent the production of sexually explicit but non-obscene videos is constitutionally protected. Although this...
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